4 F. 13 -

4 F1d 13

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Case Text

accept the petiti6n andbo'nd, al1(fproceed'no , lluit;" and the oonrt'say,·{jn' page 317 ;j. "It is·therefore a material inquiry whether the petition of the defendants sets forth snch facts as made a case for revibval, and consequently arrested the jurisdiction of ·the state court and transferred H to the federal court; implying that the federal court acquired jurisdiction ipso facto on filing petition and bond. So, also, in the Removal Cases, 100 U. S. 475, the court say: "While the act of congress requires security that the transcript B.hall be filed on the first day, it nowhere appears that the circuit court to be deprived of jurisdiction if by accident the party is dela.ye(1 untilala.ter da.yin the term. If the citcuitcourt, for good cause shown,accepts the transfer after the day; and during the term, its jurisQ,ietionwill, as a general rule1be complete. and theremQval" properly effected.". :lunder. atand, from the opinions of the court in these cases, that when the of the 8tatecourt ceases that of the, federal (Sourt J'ttaohf)8 for. some purposes, on entering a. copy; of the rec9rd, lilQ that,tbe·Qour;t'm.a.y know the facts;; buMhe' juris.. diction of the federal QOurl,is not completeIBoasto·hea.r and 4,etern;rinetbe cause, althollgha transcript is 'filed, until on .the day prescribedJn: the statnte,or after,·if the cotui See Dillon on Removal .of Causes, 71; Mahonell. Mininq 00. v. Benfl,et,t,!l. Inasmuch as the next proceeding in the case in hand is defendant to contest. the facts in the petition, lam of the opinion the courtoannot a.t ·this timeen'tertain ii.· . Application.toproceed >

In re

1.

and others, Bankrupts.

(Oircuit Ooort, D. Indiana,. - - , 1880.)
COUR'r-T,IlIE.-An appeal from an order of the district court should be 'entered 1h the circuit court within ten after the appeal is taken, although the circuit. court is in session at the time the order is made. and continues so up to tbe end of the ten days.

In Bankruptcy. Motion to Dismiss Appeals.

FEDERAL BBl!OBTER.

Herod cI Winter, Ralph Hill, and S. Stanai/er, for assignee. Hamson, Hines cI Miller, and McDonald et Butler, for cred. ito!-"s. DRUMMOND, C. J. This is a. motion to dismiss two appeals that have been taken in a bankruptcy case from orders of the district court disallowing certain claim.s against the estate of the bankrupts. The. facts are that the order disallowing these claims was made .by the district court on the twenty-seventh of Novem. ber, 1879. That order seems to have been made in the ab. sence of counsel for the claimant, and on an application to the court on the seventeenth of December. 1879, the court opened the orders and reconsidered the cases for the purpose' of allowing the parties to take an appeal to the circuit court, reforming its orders in bo'th cases. An appeal was taken from that order on the seventeenth of December, and there was no question about the appeal being taken in the proper time, and the bond being given so as to- consummate thai appeal. The appeal was taken during,theterm of the court. In fact, the:term of the court still continues. The objection on the part of the assignees to this appeal' is that the appellants did not comply. with the law of gress inenti:n'ing their 'appeal in the circuit court within ten days from the time the order was rendered. The question is whether that should have been dolle. T4e contention between the two parties is: On the part of the assignees, that the appeal should be entered in the circuit court, if the courUs in session at the .time the order is entered, and continnes up to the end of the ten days, during the court, although it is the same term. On the other hand, it is claimed by the appellants that it is sufficient if the appeal is entered in. the circuit court at the succeeding term after the order entered. . . . I am of the opinion that the true of the acts of congress and of the nIles ofthesl1preme court, on the sub. ject, is that the appeal should be entered in the circuit court within ten days after the appeal is taken, although the circuit court is in se:,sion at the time the ol'llor is made, and continues so up to the end .of the ten days.

It is necessary to re(ll1r tdthe language of the original' bankrupt act on this subjedt: "No appe!ll shall be allowed ill any case, from the district to the circuit court, unless' it is claimed, and notice given thereof to the clerk of the district court, to be entered with the record of proceedings, and also to the assignee or creditor, as the case may be, or to defeated party in equity, within ten days after the entry of the decree or decision appealed from." "Such appeal shall be entered at the term of the circuit court which shall be first held within and for the district next after the expiration of tep. days from the time of claiming the same." The only difference between the language and that noW' found in the Revised Statutes as a part of the bankrupt law,' is that the word "first" is left out in the revision; but that' clearly cannot make any difference in the sense. "The appeal: shall be entered at the term of the circuit court which' shall be held within and for the district next after the expiration' of ten days from the time of claiming the same," means pre. cisely the same as though it were "first held within' and fo!' the district i" because it is claimed that the word "next" gives' significance to the sentence, and it means the term succeeding that at which the order is en,tered next after the expira.: tion often days. See sections 4981 and 4982, Rev. St. U. S. The true meaning, I take it, is that if the circuit court is in session more than ten days after the order is made, the appeal shall be then entered. That is the term, within the meaning of the law, next after the entering of the order. This is the twenty-sixth rule made by the supreme court'under that law: "Any supposed creditor who takes an appeal to the circuit court from the decision of the district court, rejecting his claim in whole or in part, according to the provisions of the eighth section of the act, shall give notice of his inten. tion to enter the appeal within ten days from the entry of the' final" decision of the district court upon his claim i and he shall file his appeal in the clerk's office of the circuit court within ten days thereafter, setting forth a statement, in writirlg, of his claim, in the manner prescribed by said section."" The supreme court gavea construction of the statute by enacting that rule, and it would ;ssem' as 'though- iin that way bbly

16

FEDERAL REPORTER.

can we carry out the object which the bankrupt law had in view. Now, take this district. The court, by statute, only sits twice a year, once in May and once in November, and it certainly could not have beHn the intention of congress in such a case that there should be an interval of six months, or more, as there might be before the entry of an appeal should be made in the circuit court, and therefore the supreme court, in considering thestatnte, required that the appeal should be entered in the circuit court within ten days after the order made by the district court. If it is to be entered at the succeeding term, and if, the words "next after the expiration" from the time of claiming the same mean the succeeding term, then, of course, there is no significance to be given to the word "first." Perhaps, on that account, it was omitted in the Revision. The statute has been construed in other cases-in Wood v. Bailey, 21 Wall. 640; In the Matter of Coleman, 7 Blatchf. 192-in which the court held that after the claim of a. creditor of a bankrupt's estate was rejected by the district court, and an appeal taken from the decision of the district court, he must enter his appeal within ten days in the circuit court, and comply witb order No. 26, and that he must also set forth a statement in writing, etc. This has been the law ever since the statute was enacted, and section 4984 of the Revised Statutes requires that, upon entering his appeal in the circuit court, the appellant shall file with the clerk a statelllent of his case and the amount claimed in his declaration. In the case in 7 Blatchford the appeal was dismissed because the entry was not made accordingly. Altd the point is decided in the Bame way in In re Place v. Sparkman, 4 B. R. 541. And unless the omission of the word "firSt" in the Revision changes the meaning of the law as it was originally enacted, then these decisions are in point. And although the last are not absolutely controlling in this court, still I think it must be considered the true construction of the act. It is especially the construction which the supreme court has placed upon the original bankrupt law, and I do not think the omission of the word "first" changes that construction. So the appeals will be dismissed in both cases.

Sl'EIGER

v.

BONN.

STEIGER

v.

BONN.

(Oircuie C()Ure. D. New Jersey. October 18, 1880.)
1.

PROCESS-SERVICE-FRAUD.-Where

a defendant, residing in another district, is enticed and induced to come into the district where the plaintiff resides by the false representations or deceptive contrivances of 'the plaintiff, or of anyone acting in his behalf, for the purpose of serving legal process upon him, and the same is served through such improper means, such service is illegal, and ought to beset aside, and the process dismissed. Union Sugar Refinery v. It!athiesson, 2 Cliff. 304-309.

Motion to set aside Writ, etc. J. Henry Stone, for defendant. Mr. Gilchrist, Att'y Gen., for plaintiff. NIXON, D. J. This is a motion to set aside the summons issued in the case, on the ground that the defendant was in· duced, by deceptive and fraudulent means, to come within the jurisdiction of the court for the purpose of serving the writ upon him. There seems to be a substantial agreement between the coun6el of the respective parties as to the law of the case. They assent to the rule laid down by Mr. Justice Clifford in The Union S1/gar Refinery v. Mathies8on, 2 Cliff. 304-309, where he says "that where the defendant, residing in another district, is enticed and induced to come into the district where the plaintiff resides by the false representations or deceptive contrivances of the plaintiff, or of anyone acting in his behalf, for the, purpose of serving legal process upon him, and the same is served through such improper means, such service is illegal, and ought to be set aside, and that the process should be dismissed." The only question is whether the facts shown are sufficient to identify the plaintiff with, and hold him responsible for, the deception and fraud used to lure the defendant into the state. The facts are that the defendant is a citizen of the state of New York, residing in the city of New York, and engaged in the business of importing, publishing, and selling suhool books in the German language; that a convention of the German-American Teachers' Association, a body composed of German teachers from various states of the Union, was to v.4,no.1-2